Date: 20020913
Docket: IMM-48-02
Neutral citation: 2002 FCT 967
BETWEEN
ZOLTAN RICHARD,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant, Zoltan Richard, is a Romanian citizen who claims a well-founded fear of persecution on the basis of his Hungarian Roma ethnicity. His hearing before the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) was held on November 27, 2001 and by decision dated December 7, 2001, the CRDD determined that Mr. Richard was not a Convention refugee. He now seeks judicial review of that decision.
[2] There is no transcript of the applicant's hearing before the CRDD. Correspondence from the Immigration and Refugee Board dated June 7, 2002 states that the absence of the transcript arises as a result of technical difficulties. Counsel agreed that the "transcript issue" should be addressed by way of preliminary motion at the outset of the hearing for judicial review.
[3] I heard argument with respect to the preliminary motion, reserved my decision and also heard the submissions relative to the judicial review application in the event that I should ultimately find that the transcript was not necessary to determine the matter.
[4] In the absence of a statutory right to a recording (which is the situation here), the Court must determine whether the record before it allows it to properly dispose of the application for appeal or review. If it can, the absence of a transcript will not violate the rules of natural justice. The test is whether the applicant would be denied a ground of review by virtue of the absence of the transcript. The standard to be applied is that of serious possibility: City of Montréal v. Canadian Union of Public Employees, Local 301, [1997] 1 S.C.R. 793.
[5] The applicant emphasizes the threshold of serious possibility as opposed to probability. He says that in this case, there is no other means of establishing what happened at the hearing. This is not merely a gap; there is nothing available other than the decision under review. The factual review is contested and the applicant maintains that the CRDD misunderstood, miscomprehended and misconstrued the evidence of the applicant when the panel member compared it to the contents of the personal information form (PIF) and the port of entry (POE) notes. The applicant points to and relies on several grounds that he alleges require the transcript. I do not propose to deal, individually, with each of the grounds that were argued. For purposes of the motion, it is sufficient, in my view, that even one ground cannot be properly disposed of, if it could have been material to the result. The applicant also submits that the CRDD failed to have regard to the presumption of credibility as required by Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). Rather, the CRDD approached the applicant cynically and placed the onus on the applicant to establish credibility. The panel member coaxed the applicant into speculating on matters that he did not know and then rejected his speculation as not credible. This, says the applicant, created a reasonable apprehension of bias.
[6] The respondent does not agree that any of the grounds require the transcript. The Court has before it, in the tribunal record, the PIF, the POE notes and a comprehensive, detailed decision. The respondent submits that the panel member did not approach the applicant with skepticism. Rather, the CRDD found that his evidence was fraught with inconsistencies and discrepancies. The respondent maintains that the applicant, with one exception, has misread the CRDD's findings. Moreover, the panel member gave detailed, clear and cogent reasons for its credibility findings. However, if an error does exist regarding the finding on ethnicity, the respondent refers to the alternative finding that the applicant did not have a well-founded fear of persecution in the objective sense. Thus, even if the Court were inclined to remit the matter back for rehearing on the ethnicity issue, the respondent argues that the decision should nonetheless be upheld on the objective basis, which is determinative in any event.
[7] I have carefully reviewed and considered the documentation contained in the tribunal record and the arguments of counsel. The applicant takes issue with nearly every finding made by the CRDD. While many of the grounds relied upon can be reviewed without the benefit of a transcript, there are, nonetheless, some grounds relative to inconsistencies and contradictions, particularly regarding ethnicity, which I do not feel I am able to review without the benefit of the transcript. With respect to the fall-back position of the respondent that the finding of the CRDD regarding the objective basis of the fear of persecution does not require a review of the transcript, the applicant submits that this error cannot be disentangled from the general, overall findings of credibility. One of the grounds of review is that the CRDD failed to consider the cumulative nature of the incidents. Since inconsistencies, contradictions and evasiveness appear to have been major factors considered by the panel member in dealing with the various incidents and since errors may exist in relation to those findings, I cannot state with any degree of comfort that those alleged errors would not have impacted on the finding as to whether the applicant had been persecuted. It is that finding that is ultimately assessed in the context of documentary evidence. As stated previously, the threshold is one of serious possibility. The applicant has met the threshold.
[8] The application for judicial review is allowed. The decision of the CRDD dated December 7, 2001 is set aside and the matter is remitted back for redetermination by a differently constituted panel.
[9] No question is certified.
___________________________________
Judge
Ottawa, Ontario
September 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-48-02
STYLE OF CAUSE: ZOLTAN RICHARD
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: AUGUST 29, 2002
REASONS FOR ORDER OF
THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
DATED: SEPTEMBER 13, 2002
APPEARANCES:
MR. DAVID MATASFOR THE APPLICANT
MS. NALINI REDDYFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
MR. DAVID MATASFOR THE APPLICANT
WINNIPEG, MANITOBA
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA